SIGNPOSTS To Sui Generis Rights

co-organised by Thai Network on Community Rights & Biodiversity (BIOTHAI)

and Genetic Resources Action International (GRAIN)

Bangkok, 1-6 December 1997

ABOUT THIS PUBLICATION

This publication stems from an initiative that emerged in Thailand in 1996. Thai academics, NGO workers, their PO counterparts, scientists, lawyers and government officials were starting to seriously develop alternative "rights" for local communities in Thailand related to biodiversity and knowledge systems. Thailand has staunchly refused to ratify the Convention on Biodiversity until national legislation to ensure the protection of community rights was in place. The country did, however, ratify the Uruguay Round of GATT trade negotiations which established the World Trade Organisation and sanctioned the agreement on Trade- Related Aspects of Intellectual Property Rights (TRIPS).

TRIPS imposes new intellectual property requirements on Thailand as elsewhere. The government is obliged to change national law to provide intellectual property protection on plant varieties in some form -- under the patent or some tailoured sui generis system -- by the turn of the century. With the media echoing more and more stories about biopiracy in the country, and vast consultations at the community level yielding growing concern about safeguarding the rights of Thai people, something had to be done. In the midst of the agitation, those trying to articulate all of this into progressive new laws felt that they should be cooperating with similar initiatives in other developing countries. Hence, the idea to hold a South-South brainstorming on sui generis rights was born.

The Thais approached GRAIN to help organise such an effort. GRAIN has been working since well over a decade to raise public concern and action about the harmful implications of intellectual property for agbiodiversity, food security and innovation in developing countries. As an international NGO, GRAIN is resolutely against patents and other monopolies on life forms. Supporting national groups in their own engagement in the debate -- be it at the local, national or international levels -- is a strong priority for GRAIN. The struggle to assert community control over biodiversity, and protect legal space for local people, surely has to be carried to the WTO as much as elsewhere.

For these reasons, the international seminar on sui generis rights was co-organised by the Thai Network on Community Rights and Biodiversity (BIOTHAI) and GRAIN. It took place at Thammasat University's Rangsit Campus outside of Bangkok on 1-6 December 1997. Some 40 participants active in the national struggle for community rights came from a range of countries across Africa, Asia and Latin America. In addition, a half dozen international resource persons fed the group's work, providing important legal and political insights.

The seminar dissected the meaning of the sui generis rights option in context of the WTO's TRIPS Agreement. TRIPS requires developing countries to enact intellectual property rights (IPR) legislation for plant varieties by the year 2000, while least-developed countries have until 2005. This can be in the form of classic industrial patent systems or some "effective sui generis system". Most people speculate that this novel sui generis option means Plant Variety Protection [1] -- a soft patent system for seeds. PVP is widely criticised by NGOs and scientists for promoting the loss of biodiversity on farms and a global concentration of the food system under the control of a few transnational corporations. Others have been racking their brains to figure out whether and how this sui generis option could be used to enact Farmers' Rights or some other sui generis legal system to protect communities' intellectual rights and promote continued management biodiversity at the grassroots level. How open- ended is this new sui generis option? What can be achieved through it? What proposals could developing countries make to win the most for their farmers, traditional healers and other rural communities when the Agreement is renegotiated in 1999?

We agreed, through our deliberations, that any sui generis right developed within the TRIPS framework will inevitably be an intellectual property right -- because that is what TRIPS is concerned with -- and therefore will be inimical to peasants and other poor sectors in developing countries. This holds as much for knowledge systems as it does for the genetic resources themselves, both of which are falling prey to unscrupulous profiteers today. For this reason, we agreed that the review of TRIPS in 1999 must endorse a better legal option: the option to exclude life forms from patent law in those countries that so wish. This full exclusion is necessary for farmers and indigenous people to get on with their lives, and for developing countries to improve their control over their own resources. It is also necessary to outlaw biopiracy at the global level.

At the same time, sui generis rights for local communities have to be urgently developed in another context, based on a different set of values, controlled by the people themselves. The seminar group emphasised that the struggle to develop and assert community sui generis rights is eminently a local affair. But it needs support, expression, linkages and expansive form through national, regional and international cooperation. At the very least, governments must entrench the peoples' "NO to patents on life!" position if biodiversity -- and communities' rights to control it and benefit from it on their own terms -- will have any chance of survival at all. Sui generis rights are in total conflict with patent laws: either we protect communities' interests or we protect the TNCs.

As we realised together in Bangkok, the sui generis rights struggle is really another stage in a protracted war. The WTO is a new and powerful forum we have to wrestle with and where developing country governments have to be supported through the toughest negotiations. The TRIPS Agreement embodies cohesive might against billions of small farmers, healers, indigenous peoples, fisherfolk and others whose day to day lives and cultures depend on biodiversity in their own backyard. For that reason, the sui generis rights "movement" that we articulated in Bangkok is a very holistic one. Our task is not to slander one bad treaty after the other. We have to create the conditions for community rights to be respected. That means reducing the operating field of the IPR system, exposing the anti-democratic nature of TNCs and building up popular mobilisation to support local communities in the exercise of their rights.

This publication is the output of a collective research effort meant to feed into the seminar. The co-organisers were well aware that only a certain number of interested people could come to Bangkok due to a range of limitations. For that reason, an effort was made to produce researched background materials that could be shared in a much broader way with other groups who are working at the national and international levels on these issues. A first edition of Signposts was circulated in October 1997. This final edition benefits from extensive comments and corrections made by the sui generis rights seminar participants and other colleagues as well.

The research that went into the GRAIN papers was supported energetically by staffers Miges Baumann and Lene Santos. Special input and feedback came from Jaroen Compeerapap, Worku Damena, Margarita Flores, Amelia Foràster, David Hathaway, Silvia Rodriguez, Vandana Shiva, Riza Tjahjadi and Rachel Wynberg. Parts of the first draft of this publication were improved by Kristin Dawkins, while additional materials were provided by Professor Nandunjaswamy of Via Campesina and Dr. Owain Williams of the GAIA Foundation. We are sincerely grateful to all of these individuals, as well as the seminar resource persons and keynote speaker who all contributed to this volume and many other people who took time to answer questions and share information for its compilation. Thanks are also extended to the agencies which funded the seminar process, of which this document is an integral part. These are Brot für die Welt, GTZ, ICCO, Misereor and SIDA. In addition, the GAIA Foundation provided much "in kind" communications and organisational support.

We cordially invite your comments and feedback on the ideas and proposals in this document, and hope it generates much broader involvement in the fight against IPRs on life and the more necessary struggle for the rights of local communities.

[1] In some countries this is called Plant Breeders' Rights.